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June 28, 2013

In this Issue

On June 25, President Obama announced his plan to mitigate greenhouse gas emissions. The plan seeks to implement federal action on addressing climate change in lieu of Congress that has not passed comprehensive legislation to reduce carbon emissions throughout the president’s first-term.

“Today, about 40 percent of America’s carbon pollution comes from our power plants. But here’s the thing: Right now, there are no federal limits to the amount of carbon pollution that those plants can pump into our air,” said President Obama. “We limit the amount of toxic chemicals like mercury and sulfur and arsenic in our air or our water, but power plants can still dump unlimited amounts of carbon pollution into the air for free. That’s not right, that’s not safe, and it needs to stop.”

The president asserted that rising sea-levels over the past century have contributed to more damaging hurricanes and that temperature changes have caused more severe droughts and increased the duration and reach of wildfires.

Implemented largely through the US Environmental Protection Agency and the Departments of Agriculture and Interior, the plan would set carbon limits on coal-fired industrial plants and invest in renewable energy usage on public lands. To brace for the continued impacts of climate change, the plan utilizes strategies developed in the aftermath of Hurricane Sandy to help communities guard against flooding and extreme weather events. It also intends to apply scientific knowledge to help farmers, ranchers and landowners manage droughts and wildfires and improve forest restoration efforts. Recognizing that mitigating climate change is a global effort, the White House plan also increases federal government involvement in international efforts to reduce greenhouse gases and sets guidelines for how foreign assistance is spent.

President Obama also mentioned the Keystone pipeline in his speech. Environmental groups have ardently urged him to reject approval of the pipeline, in part by stating it would have negative consequences related to climate change. While the president did not state what his administration will ultimately decide, he stated “the pipeline’s impact on our climate will be absolutely critical to determining whether this project is allowed to go forward.” The draft environmental impact statement released in March claimed the pipeline would have a negligible impact on the environment as long as certain regulatory safeguards are appropriately implemented.

The president also sought to reaffirm the consensus among scientists on humanity’s contribution to climate change. “The overwhelming judgment of science — of chemistry and physics and millions of measurements — has put all that to rest,” he said. “Ninety-seven percent of scientists, including, by the way, some who originally disputed the data, have now put that to rest. They’ve acknowledged the planet is warming and human activity is contributing to it.”

He also took time to rebuke climate change skeptics. “Nobody has a monopoly on what is a very hard problem, but I don’t have much patience for anyone who denies that this challenge is real,” said President Obama. “We don’t have time for a meeting of the Flat Earth Society,” he continued to applause. “Sticking your head in the sand might make you feel safer, but it’s not going to protect you from the coming storm. And ultimately, we will be judged as a people, and as a society, and as a country on where we go from here.”

Reaction among leaders on Capitol Hill was typically partisan with Democrats praising the environmental and health benefits of the president’s plan and Republicans describing it as a threat to job creation and energy development. “I am disappointed the president has once again signaled his intent to move forward with new rules that will make energy more expensive for hardworking American families,” stated House Science, Space and Technology Committee Chairman Lamar Smith (R-TX). “The president plans to use executive orders to bypass Congress and create more red tape that will increase the price of electricity and gasoline. And the president’s plan will have little or no impact on climate change.” House Science, Space and Technology Committee Ranking Member Eddie Bernice Johnson (D-TX) hailed the proposal, asserting that the “directives outlined by the president finally put the United States in a position to lead the globe on the critical issue of climate change.”

Given that Republicans control only the US House of Representatives, Congress’s ability to block the administration’s regulatory efforts will not be insurmountable, but it will be limited. Industry groups can be expected to challenge some of the proposed regulations through the judicial system. The US Supreme Court is already slated to take up a review of EPA’s Cross-State Air Pollution Rule, which seeks to regulate air pollution that crosses state lines.

This month, the House and Senate appropriations committees move forward on legislation to fund federal energy and water development programs for Fiscal Year (FY) 2014. Such programs are implemented largely through the Department of Energy (DOE) and US Army Corps of Engineers.

The House and Senate bills differ by $4 billion in their funding amounts, potentially setting up new conflicts during the conference process this fall and potentially, leading to a continuing resolution or a government shutdown if no agreement is reached between the House and Senate on overall discretionary spending levels for FY 2014. The House bill accounts for continued implementation of sequestration through FY 2014 while the Senate bill does not. House appropriators also are seeking to boost defense spending in FY 2014 and plan to adhere to the overall sequestration levels by cutting overall non-defense discretionary spending even further.

The $30.4 billion House energy and water bill slashes funding for a number of renewable energy and research programs at DOE. Funding for the Office of Energy Efficiency and Renewable Energy would be cut by 40 percent compared to existing sequester level funding. The Advanced Research Projects Agency-Energy would be cut by 80 percent below the sequestered funding. The DOE Office of Science would be funded at $4.7 billion, slightly above the sequester, yet 5.7 percent lower than pre-sequester FY 2012. It was approved by the House Appropriations Committee June 26 along party lines by a vote of 28-21.

House Appropriations Committee Chairman Hal Rogers (R-KY) asserts the cuts are necessary to maintain national security and economic investments, including funding the Army Corps. Under the House bill, the Army Corps of Engineers would receive $4.9 billion in FY 2014, two percent below the pre-sequester enacted level for FY 2013. House Appropriations Committee Ranking Member Nita Lowey called for an additional $2.6 billion in funding for the Army Corps., citing the agency’s $60 billion backlog in authorization projects. The measure also includes a provision blocking funding for any effort to clarify Clean Water Act jurisdiction over regulating wetlands.

The Senate Energy and Water appropriations bill was approved June 27, by a bipartisan vote of 24-6. Senate Appropriations Committee Ranking Member Richard Shelby (R-AL) opposed the bill, concurring with the view of House Republicans that it should be funded in accordance with existing sequester levels. Energy and Water Subcommittee Ranking Member Lamar Alexander (R-TN), along with Sens. Thad Cochran (R-MS), Susan Collins (R-ME), Lindsey Graham (R-SC), Jon Hoeven (R-ND), Mark Kirk (R-IL) and Jerry Moran (R-KS) joined committee Democrats in supporting the bill.

In contrast to the House measure, the Senate bill includes a $300 million boost over pre-sequester FY 2013 spending levels for the Army Corps, $287 million above pre-sequester FY 2013 spending levels for the DOE Office of Science, a $114 million increase for ARPA-E and a $470 million increase for renewable energy and energy efficiency projects. Senate Democratic leaders are seeking to enact overall appropriations that adhere to the pre-sequester Budget Control Act levels. They insist the sequester should be addressed, not through appropriations, but in a separate long-term deficit reduction agreement.

Before the conference process between the two chambers begins, each body must pass its bill individually. The steep cuts in the House bill will make it unlikely it will get much support from House Democrats, meaning Republican leadership will likely have to rely on the votes of their own conference in order to get it passed. The partisan gridlock increases the likelihood that continuing resolutions will be necessary to fund the government when FY 2013 ends on Sept. 30.

For additional information on the Senate Energy and Water bill, click here:

In a 5-4 ruling, the US Supreme Court this week ruled that governments can owe compensation to property owners who are denied land development permits. The court affirmed that a Florida resident who sought building permits to develop his land could pursue a property rights claim against the St. Johns River Water Management District. The water management district had refused to approve his project unless he made certain concessions, including spending money to improve public lands elsewhere.

Coy Kootnz Sr. had sought to develop 3.7 acres of land that the water management district classified as a habitat protection zone. State regulators requested that he reduce the size of the development area to a single acre and that he hire contractors to make improvements to other district-owned wetlands. Kootnz did not comply with these requests and his permit was consequently denied.

The opinion, written by Associate Justice Samuel Alito, joined by Chief Justice John Roberts, Associate Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas, serves to place greater restrictions on what standards government regulators place on permit applications. In its opinion, the court cited Nollan v. California Coastal Commission, and Dolan v. Cityof Tigard, which held that a government may not condition a land-use permit on an owner to give up the use of their property unless a “nexus” and rough proportionality” is present between the demand and the effect of the proposed land use.

The Supreme Court opinion reverses the opinion of the Florida Supreme Court, which held that the Nollan-Dolan standard applies to the approval, not the denial, of a permit and that the standard does not apply to a demand for the payment of money, in contrast to a specific burden on property interest. Traditionally, the standard has applied in instances where an approved permit includes a condition that the property owner relinquishes some property. Alito argued that the standard should apply even in instances of a denied permit because landowners are particularly vulnerable to coercion in the land permit process.

The dissenting opinion was penned by Associate Justice Elena Kagan, who agreed with the Florida Supreme Court’s opinion that the Nollan-Dolan standard does not apply to a monetary requirement. Kagen asserted that the majority “threatens to subject a vast array of land-use regulations, applied daily in states and localities throughout the country, to heightened constitutional scrutiny.” Her opinion was joined by the liberal wing of associate justices: Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

On May 31, the White House Office of Science and Technology Policy (OSTP) released its five year strategic plan for further investment in Science, Technology, Engineering and Mathematics (STEM) Education. The plan outlines a series of priorities to help federal agencies expand STEM Education in the United States.

Overall, the plan seeks to improve STEM participation in the United States both across all educational levels and in the workforce. In line with the proposal outlined in the president’s FY 2014 budget, the plan also seeks to consolidate all STEM programs under the Department of Education (K-12), the National Science Foundation (undergraduate and post graduate), and the Smithsonian Institution (informal education). The plan’s recommendations include:

Better serve women, minority groups and the economically disadvantaged who are historically underrepresented in STEM-related fields.

Increase STEM participation in the US workforce by providing graduate-trained STEM professionals with basic and applied research expertise.

The strategy was developed by the Committee on Science, Technology, Engineering and Math Education (CoSTEM), which was authorized under the America COMPETES Reauthorization Act of 2010 (P.L. 111-358). Under the law, the strategic plan is to be updated every five years.

The American Association for the Advancement of Science has released its annual Research &Development report summarizing the president’s Fiscal Year 2014 budget request and its impact on funding for science research. The Ecological Society of America (ESA) is a long-time contributor to the annual budget analysis.

The report focuses on a number of federal agencies and programs of importance to the scientific community. ESA’s contribution, in collaboration with the American Institute on Biological Sciences, highlights federal programs of importance to the biological and ecological science community, including initiatives at the Environmental Protection Agency, the Departments of Agriculture and Energy, the National Oceanic and Atmospheric Administration, the National Science Foundation and the United States Geological Survey.

On June 19, the House Energy and Commerce Committee approved the following bills:

H.R. 2218, the Coal Residuals Reuse and Management Act of 2013 – Introduced by Rep. David McKinley (R-WV), the bill would prevent the Environmental Protection Agency (EPA) from regulating coal combustion waste as a hazardous substance. The bill was approved by a vote of 31-16.

H.R. 2226, the Federal and State Partnership for Environmental Protection Act – Introduced by Rep. Bill Johnson (R-OH), the bill would require EPA to consult with states on removal or remediation actions, as well as offer credit to states when the cost of cleanup is shared for in-kind contributions.

H.R. 2279, the Reducing Excessive Deadline Obligations Act – Introduced by Rep. Cory Gardner (R-CO), the bill would strike a deadline from the Comprehensive Environmental Response, Compensation and Liability Act (CERLCA) pertaining to financial assurance requirements from the owners of a hazardous facility, based on injury risk. The bill was approved 25-18.

H.R. 2318, the Federal Facility Accountability Act – Introduced by Rep. Bob Latta (R-OH) the bill would require that federal entities comply with state and local laws while conducting a CERCLA cleanup and would allow EPA to review any actions taken by a delegate in a CERCLA cleanup. The bill was approved by a vote of 26 to 18.

Failed House

H.R. 1947, the Federal Agriculture Reform and Risk Management (FARRM) Act – Introduced by House Agriculture Committee Chairman Frank Lucas (R-OK) and Ranking Member Colin Peterson (D-MN), the comprehensive $940 billion farm bill would reauthorize agricultural programs though Fiscal Year 2018. Overall the bill cuts $40 billion over the next decade, largely from mandatory and nutritional programs, which led to opposition from a majority of House Democrats. These cuts also include $6.9 billion from conservation programs. The bill also consolidates 23 conservation programs into 13.

The bill failed to pass the House June 20, by a vote of 195-234 with 62 Republicans opposing the bill and 171 supporting it. Among Democrats, 172 opposed the bill and 24 supported it. Any Democratic support that Republican leadership had depended on to clear the bill was scratched by Republican amendments that placed a number of added requirements on food stamp recipients. Republicans also blamed conservative advocacy groups like Heritage Foundation and Club for Growth for chipping away at Republican support for the bill. Conservatives argued that the bill didn’t cut food stamp programs enough.

Passed House

H.R. 1613, the Outer Continental Shelf Transboundary Hydrocarbon Agreements Authorization Act – Introduced by Rep. Jeff Duncan (R-SC), the bill would implement the US-Mexico Transboundary Hydrocarbon Agreement, a bipartisan February 2012 agreement that created a framework for US offshore drilling companies and Mexico’s Petróleos Mexicanos, or Pemex, to jointly develop oil in the Gulf of Mexico, outside both countries’ economic zone waters. The bill also includes a waiver to a Securities and Exchange Commission (SEC) provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203) requiring energy companies to report mineral payments to foreign governments. The inclusion of the Dodd-Frank disclosure waiver led to strong opposition from a majority of House Democrats as well as a veto threat from the Obama administration. The bill passed June 27 by a vote of 256-171. Twenty-eight Democrats joined a majority of Republicans in supporting the bill. Rep. Walter Jones (R-NC) was the only Republican to vote against it.

H.R. 2231, Offshore Energy and Jobs Act – Introduced by House Natural Resources Committee Chairman Doc Hastings (R-WA), the bill would open new areas for offshore drilling. Specifically, the bill directs the Interior Department to develop a new five-year offshore leasing plan that makes available for oil and gas exploration and development at least 50 percent of the unleased coastal areas with the most potential for energy production. The bill passed the House June 28 by a vote of 235-186. All but six Republicans supported the bill while all but 16 Democrats opposed the bill. The Obama administration issued a veto threat against the measure, asserting its provisions include “unworkable deadlines” for appropriate environmental review that is critical for National Environmental Policy Act, the Endangered Species Act, the National Historic Preservation Act, and the Clean Water Act compliance. The Democratic-controlled Senate is not expected to take up the bill.

Two amendments that sought to protect wildlife areas from offshore development failed. The Peter DeFazio (D-OR) amendment to protect the Bristol Bay fishery off the coast of Alaska failed 183-235. Three Republicans (Jaime Herrera Beutler (WA), Dave Reichert (WA) and Michele Bachmann (MN)) joined all but 15 Democrats in supporting the amendment. Another amendment from California Democrats Lois Capps, Julia Brownley and Alan Lowenthal to prohibit oil and gas development in the Southern California planning area (which includes Santa Barbara, San Diego and Los Angeles and nine other counties) failed 176-241. Seventeen Democrats joined all Republicans in opposition to the amendment.

Introduced in Senate

S. 1202, Safeguarding America’s Future and the Environment (SAFE) Act – Introduced June 20 by Sens. Sheldon Whitehouse (D-RI) and Max Baucus (D-MT), the bill would require federal agencies that manage natural resources to adopt climate change adaptation plans that are consistent with the National Fish, Wildlife, and Plants Climate Adaptation Strategy, released this year by the Obama Administration. The bill has been referred to the Senate Environment and Public Works Committee.

S. 1232, the Great Lakes Ecological and Economic Protection Act – Introduced June 26 by Sens. Carl Levin (D-MI) and Mark Kirk (R-IL) the bill would formally authorize the Great Lakes Restoration Initiative, created by President Obama in 2009 to address aquatic invasive species, toxics and contaminated sediment, nonpoint source pollution and other ecological threats to the Great Lakes. It would also reauthorize the Great Lakes Legacy program, which supports the removal of contaminated sediments, and the Great Lakes National Program Office, which handles Great Lakes matters for the Environmental Protection Agency. The bill has been referred to the Senate Environment and Public Works Committee.

S. 1240, Nuclear Waste Administration Act of 2013 – Introduced June 27 by Senate Energy and Natural Resources Chairman Ron Wyden (D-OR) and Ranking Member Lisa Murkowski (R-AK) and Senate Appropriations Subcommittee on Energy and Water Development Chairwoman Diane Feinstein (D-CA) and Ranking Member Lamar Alexander (R-TN), the bill would set up a new organizational process for identifying new temporary and permanent sites for storing nuclear waste. Among its provisions, the bill would call for the creation of a Nuclear Waste Administration to site temporary and permanent repositories for radioactive waste from U.S. reactors. The bill has been referred to the Senate Energy and Natural Resources Committee.

Passed Senate

S.352the Devil’s Staircase Wilderness Act of 2013 – Introduced by Sen. Ron Wyden (D-OR), the bill designates roughly 30,500 acres of land in the Siuslaw National Forest and the Bureau of Land Management’s Coos District as wilderness and protects about 14 miles of the Wasson and Franklin Creeks. The bill passed the Senate June 19 by unanimous consent and has been referred to the House Natural Resources Committee.